April 20, 2017

Another way to put that is: The Supreme Court Looks Poised to Rule That Sometimes Not Discriminating Based on Religion Is More Important Than the Strict Separation of Church and State.

ADDED: The cases is about whether Missouri can exclude religious organizations from an otherwise generally available program to distribute recycled tires for surfacing playgrounds. Missouri is taking a strong no-aid-to-religion approach that entails discriminating based on religion.

[Justice] Sotomayor expressed doubt that the playground could be separated out from the church’s religious work. The playground is part of the ministry of the church, she suggested. Cortman urged the justices to focus on where the money goes; here, he emphasized, the money goes only to the playground resurfacing....

Justice Samuel Alito pushed back against the idea that provisions like the state constitutional amendment on which Missouri relied to deny funding to Trinity Lutheran reflect some sort of “honorable historical tradition.” Instead, he asked somewhat rhetorically, aren’t they based on “anti-Catholic bigotry”?...

Citing a variety of federal programs that provide funding that could flow to religious institutions – for example, a Department of Homeland Security program to improve security near high-risk targets like synagogues or mosques and a program to repair buildings damaged by the bombing at the federal building in Oklahoma City – Alito pressed [Missouri's lawyer James] Layton on whether the state’s policy would bar similar programs. Layton held firm, telling Alito that it would because state money cannot be used for religious institutions.

That response prompted Kagan – who during [the argument by the lawyer for Trinity Lutheran Church] had seemed to be leaning toward the state – to ask whether the state’s position would also bar the state from providing police and fire protection to churches. Layton responded that it would not, reasoning that public safety is a service, rather than something for which the state gives funding to a religious group.

Justice Stephen Breyer seemed unconvinced. He first asked Layton whether the U.S. Constitution would allow a state to declare that it wouldn’t provide a church with police or fire protection. When Layton responded that would not, Breyer then moved on to what seemed to him to be the logical next step: How does the Constitution then allow Missouri to deny money for a new playground surface to a daycare center, whose students could face all kinds of potential hazards – ranging from a skinned knee to tetanus and a broken leg – from the older, less safe playground?

Alito seized on what he clearly viewed as a potential weakness in the state’s defense of its policy. How do you distinguish, he asked Layton, between a program that is open to everyone who wants the funding and a program like the playground resurfacing program that awards grants based on purely neutral criteria?...

Kagan... declared that “this is a clear burden on a constitutional right” because religious individuals and groups are barred from competing for an otherwise neutral benefit.

Gorsuch followed up on this line of questioning, asking Layton to explain why excluding religious groups from selective programs would be preferable to excluding them from a general benefit. Layton responded that selective programs tend to have more public visibility than the general ones, and can effectively amount to a government endorsement of the religious group and its mission. But Gorsuch was dubious. How, he asked, do we draw those lines?

More at the link, including courtroom sketches.

It's silly to act as though Gorsuch is the driving force here. This is an issue that has been brewing for a long time, and the problem of discriminating against religion is apparent to liberal as well as conservative Justices.

And it would be possible for a conservative to support the state by taking a strong federalism position. That's what Chief Justice Rehnquist did in Locke v. Davey, the key precedent in this area. In that case, the state of Washington was allowed to deprive a student of a scholarship — which he qualified for with his high school grades — because he majored in devotional theology. Rehnquist wrote:

[W]e find neither in the history or text of Article I, §11 of the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus towards religion. Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect.

Note the problematic idea that it's okay to discriminate if you're not doing it out of "animus" — negativity toward religion. That's the idea the state's lawyer was trying to use in the oral argument yesterday in talking about the "honorable historical tradition."

61 comments:

It seems to me that we already subsidize churches by forgiving them the need to pay property tax. Not to mention the massive establishment of religion that elements of the welfare state represent. I prefer no money for the Missouri church - let their kids skin their knees on good old asphalt.

And maybe the sewers should be blocked up. And Utility companies should be required to treat expenses of serving churches below the line. Police protection for people in churches should be denied. Fire protection?

We just can't have the state establishing religion... unless it is Muslim.

"the governor of Missouri actually reversed it last Thursday." So how can this be a live controversy? And how can a strict originalist apply the First Amendment here at all (Congress shall make no law etc.)? A 14th amendment equal protection argument I can sorta see.

TreeJoe said...We subsidize political speech through tax deductible donations to organizations that perform expressly political activities.

We subsidize religious organizations by creating tax breaks around them.

This shows how the language is being corrupted. Letting someone keep more of their own money is not a subsidy. A subsidy is defined as a sum of money granted by the government or a public body to assist an industry or business so that the price of a commodity or service may remain low or competitive. e.g "a farm subsidy".

As I read it, the Missouri case is that a qualifying non-profit organization is being denied equal treatment because of religion. That is in accordance with the Missouri Constitution. We'll see how the supreme court rules on it.

As to your first point, most non-profits that qualify for tax deductible donations fall under the rules of 501.c.3 which prohibits them taking part in political activities. Most political contributions, are not deductible.

"Judging by the news accounts, it looks like Breyer and Kagan will join him in that view."

Right.

If you have a program that offers government benefits generally — a neutrally defined program, giving some benefit that isn't about religion (here it's recycled shredded tires to be used to make playgrounds safer) — can you add an exception that says: But religious organizations may not apply (that is, discrimination against religion)?

The idea that you can discriminate is based on the principle that no government aid should go to religion.

This isn't a question of what the Establishment Clause means, but a state having a higher standard of restricting government aid to religion and wanting to exclude religious organizations from the program, in keeping with that state's tradition of a strict "no aid" approach. Conservatives who are big on federalism might want to agree with that.

The key precedent is Locke v. Davey, in which the Supreme Court allowed Washington state to take a scholarship away from an otherwise qualified college student when he declared his major to be devotional theology. Washington relied on its own constitution which wasn't -- according to the Supreme Court -- premised on animus toward religion but an honorable commitment to separationist values.

Note that Washington only excluded the really religious use of the money: to study theology as dogma to become a minister. The scholarship was otherwise widely available, even to students going to religious colleges and even when they took some courses in devotional theology. Just don't major in that and you can keep your scholarship. Federalism values prevailed over the anti-discrimination principle.

But in this new case, the funding that's withheld is for something utterly nonreligious: the rubber surface of playgrounds. There's nothing religious about the kid falling off a swing.

Once the Government has become the Established Religion, it hates funding any competition to itself. No wonder the Constitution guys wrote themselves a 1st Amendment. Now let's see if it is obeyed again.

In our area, many churches run preschools that are open to families who are not members of the church. Our youngest was enrolled in such a school run by a church. We're not only not members of that church, but we're not Christian.

Does the church in question exclude kids who aren't part of the church community?

"Does the church in question exclude kids who aren't part of the church community?"

It would be a different case if the state's program were defined as being available only to organizations that serve children without discrimination based on religion. That would be a neutrally defined program.

I know that's not what you're asking, but I'll try to find the answer. I just wanted you to think about the option the state would have if that were its concern. And shouldn't the pressure be on the state to write a program that doesn't discriminate based on religion?

But the lawyer for the church, on a hypothetical from Ginsburg, says that even if they did have preferences for students that belonged to the religion, they couldn't be discriminated against, because they have a Free Exercise right to choose co-believers to associate with.

Donald Trump's 90-say travel ban was overturned because he had said anti-Muslim things during the campaign. Many supporters of the Missouri constitutional provision said anti-Catholic things in campaigning for it. Therefore, ...

Seems people are thinking 7-2. I would actually rather bet on 9-0. The pushback from Sotomayor etc. doesn't seem that strong, and the arguments are compelling to anyone but a libertarian federalist - and I don't think there are any of those on the Supreme Court.

Prof. A: "There's nothing religious about the kid falling off a swing." Bingo.

That to me is a very strong argument for ruling against the state government's discrimination. The "churchiness" of this activity is just about zero. The confusion comes because the church has had the temerity to do more for its "community" than just offer the liturgy to true believers in a sanctified structure on Sunday morning. It has built and runs a playground.

The only residual question for me is, is the playground restricted to members of the church and their children? Is there a religious community that would benefit exclusively from this allocation of public funds: even if the funding is not for a religious purpose, but some ancillary benefit?

Apparently the playground is open to all comers. If so, I think this is a slam-dunk decision.

Let's not forget that Missouri is, as far as I know, the only state that actually tried to commit genocide based on religion: Governor Wilburn Boggs "Extermination Order" back in 1830's where he ordered the state militia to kill every Mormon they could find within the state borders, and drive them out.

That order was not rescinded until 1976; though naturally it wasn't being enforced.

One wonders what, say, Slate or the Washington Post would say about such an order if issued today. I'm pretty sure it would depend on the target, wouldn't it? If issued against Mormons again or Catholics, it would be defended. Targeting Muslims, of course, would be the worst form of bigotry imaginable.

Not only does the school have a nondiscriminatory admissions policy, according to its attorney, it makes the playground available to all comers during non-school hours. According to the attorney, a majority of the kids who use the playground do NOT attend the church that sponsors the school.

I don't follow MO's interest in this. In essence the state wants to deprive some its residents and taxpayers a benefit it would offer those very same residents and taxpayers in another venue.

Missouri, like several other states, has a constitutional amendment that prohibits the use of state funds to subsidize religious organizations. These amendments were adopted to make it more difficult for the Catholic church to establish parochial schools. So, while its a different church than the one that motivated adoption of the amendment, the amendment is operating as it was designed -- to deny a state benefit that would be available if the recipient weren't a church.

If you have a program that offers government benefits generally — a neutrally defined program, giving some benefit that isn't about religion (here it's recycled shredded tires to be used to make playgrounds safer) — can you add an exception that says: But religious organizations may not apply (that is, discrimination against religion)?

"the governor of Missouri actually reversed it last Thursday." So how can this be a live controversy?

The controversy can survive the governor's action because third party's have already said that they'll sue if the state does not bar church schools from receiving the benefit. The claim is that the governor doesn't have the authority to extend the benefit to church schools because the state's constitution prohibits the extension of such benefits to religious organizations. State courts would most likely rule against the state, requiring it to deny the benefit to the school.

State courts have generally applied these anti-catholic amendments broadly. A few years ago, the courts in one of the states prohibited schools sponsored by religious organizations from participating in the state's school choice program. Under the program, the parents of students received a voucher from the state for tuition at public or private schools within the state. The courts held that the parents could not use the vouchers at a church sponsored school since that would allow state funds to flow to a religious institution, in violation of the state's constitution. (I forget the state, or I'd look up the case and provide a cite.)

Missouri's rule is one of the "Blaine Amendments" that came about on the state level after the attempt to amend the US Constitution failed. It was primarily motivated by anti-Catholic animus. The idea behind it of church and state separation is not necessarily a bad idea, but in this age of big government it becomes more and more dubious.

If the gov owes the free stuff to religious institutions, how about eliminating the religious discrimination that makes them tax exempt?

Are you in favor of this treatment of all charitable organizations whether they are affiliated with a religious institution or not? Many schools are "charities" for purposes of federal tax law. Should states treat these charities differently depending on who sponsors them?

Many churches do get gov dough for non-religious activities, when they apply to perform the same roles as competing nonprofits. That's different re claiming that the gov must buy them new playground equipment.

Don't try & go there with 3rd Grade. When folks make the kind of points like what he just made, it just shows that they've let their pissiness get in the way of actually understanding just how many different types of incorporation schemes the state/feds allow, & how each type of corporation has its own tax requirements & exemptions.

Yes, churches & other charitable corporations don't pay taxes. You also can't sell shares in them or sell the corporation for a profit.

What's really amazing is that there's all sorts of chicanery in the little regulated non-profit world (e.g. "losing" the end of year "excess funds" that might be considered "profits" by paying the money as bonuses to corporate officers), but folks like 3rd go for the religious charity jugular.

The argument may be made that public facilities, including public schools, have becomes establishments of the state's church: socially liberal, scientifically selective. We are already subsidizing indoctrination in matters of consensus, philosophy, faith, fantasy, and the twilight fringe.

Many churches do get gov dough for non-religious activities, when they apply to perform the same roles as competing nonprofits. That's different re claiming that the gov must buy them new playground equipment.

Did you read that before posting it, because in a mere two sentences you contradict yourself. First, you say its okay for the state to subsidize the activities of religious charities as long as they are performing the same roles as other charities. Next you say that's somehow different from asking for the government to buy new playground equipment for the religious charity's use. How's this a contradiction? Let's say we have two private pre-schools, one supported by a religious organization and the other not. Both have playgrounds and both apply for a state program that provides equipment for school playgrounds. Isn't that exactly the situation described in your first sentence? (Yes, it is.) Then why do you say its somehow "different" in your second sentence?

Note: Your brief statement reveals you don't have a firm understanding of the facts of the case nor of the issue. The facts are the government has a program that provides shredded tires for use as a playground ground cover. The state provides this material to both public and private schools. The church sponsored school applied for and was awarded a benefit under this program. Then, someone noticed that the school was sponsored by a church and denied the award because it violated the state's constitutional amendment that prohibits the distribution of state funds, directly or indirectly, to church schools. The school's playground is used by kids in the neighborhood during non-school hours. A majority of the students of the school to NOT attend the church that sponsors the school.

In sum, the school is providing substantial benefits to students and neighborhood kids who do not attend the church. The state has a program to increase the safety of school playgrounds in the state by providing the recycled tire material. The state denied the school benefit from the program solely because it is sponsored by a church.

Yes, the denial was because the law says no gov dough for church playgrounds, and other stuff.

All your jabber about ancillary use of equip by hood rats is not relevant.

This is an attempt to force the gov to fund a church playground. Knowing that other govs in other situations have found ways to choose faith based funding is different than forcing a gov to pay for a church's playground equipment (or who knows where y'all would draw a line.)

PB&J and Left Bank have merely inherited the old English establishment hatred of Catholics. This was a constant theme in the US establishment, and the neo-establishment has adopted it, while dropping any number of other traditions. The most ancient hatred in Anglo-Saxon culture.

DK and I tried to educate you as to the facts of the case. Clearly, you don't care about any of that. You just dismiss it all as "jabber" and repeat your demonstrable nonsense about forcing the government to fund a playground. I don't think you are stupid. So, why? What psychic benefit do you get out of baiting strangers with nonsense?

Fine, you're right. This case isn't about using the courts to overturn a law that bans government money from going to churches. It's about liberty and God and America and Justice and such, IOW it is about the fact that it's impossible for a government to exclude churches from free playground stuff (maybe more stuff, too) when the gov is handing out free playground stuff (maybe more stuff, too) cause that's what the constitution says.

No. You just seem stuck in a certain world-view incompatible with his. There is no reasoning together at this point, only bullets. Over the Internet, of course, one can't use actual bullets. One can only use words intended as bullets, but they will have to do.

A Republican governor has replaced a Democrat and has revoked the policy being challenged. Seems like the case should be moot and the appeal dismissed. Kids can get their tire-rubber playground after all.

I think that the incompatibility is that some here want to support the courts throwing out a law that bans gov dough from going to churches, but they don't want to be in favor of the courts throwing out a law that they don't like.

It looks like readering is reporting that they could have stood w/ principle, i.e. wait for a legislative solution to a legislative problem. But, once your on record abandoning principle it's tricky to cover that up.

Or, maybe they want to keep going so that the courts can issue a legal precedent forbidding governments from being able to write laws that ban gov dough going to churches for playground equipment, and who knows what else.

readering: "A Republican governor has replaced a Democrat and has revoked the policy being challenged. Seems like the case should be moot and the appeal dismissed. Kids can get their tire-rubber playground after all."

This is an attempt to force the gov to fund a church playground. Knowing that other govs in other situations have found ways to choose faith based funding is different than forcing a gov to pay for a church's playground equipment (or who knows where y'all would draw a line.)

Allow me to reframe the issue so you might be able to see the other side of the argument: Suppose Missouri has a welfare benefit available to all its residents -- except those who've attended any religious service in the prior 18 months. You could describe the inevitable lawsuit over the excluding churchgoers from receiving the benefit as "forcing a gov to pay churchgoers". But, most would feel such a description doesn't capture the essence of the matter. They would say the lawsuit was over whether or not the state can withhold a welfare benefit from otherwise eligible persons merely because they've attended a religious service in the prior 18 months. That is, is it permissible for the state to discriminate against religious persons for no other reason than that they are religious?

In the instant case, the state believes it furthers its public policy to have kids playing on playground equipment to be protected from injury by putting down a layer of shredded tires underneath the equipment. Virtually any institution that has a playground open to the public is eligible to receive the shredded tire material free from the state -- except for a school that is owned by a church. You frame the resulting lawsuit as trying to force the government to pay for the church's stuff. The school frames it as asking the state to not treat it any differently than a similar school with secular owners. What you see as an unwarranted subsidy of religious activity, most others see as unfair discrimination against the school because of its religious owner.

Linguistically, if in no other way, the unfair discrimination side has the better argument. The state is removing from the school a benefit it otherwise makes available to all comers. We don't generally view the provision of a general benefit to everyone as a subsidy of any particular person or entity. We wouldn't say the state was subsidizing the school because its teachers and students travel to and from the school via public streets. Instead, a subsidy is generally understood as a benefit made available to a few at the exclusion of others -- giving the recipient an advantage over others. That's not what the state would be doing if the school wins its case. It will simply be put on equal footing with other schools with secular owners. That is, the state will no longer penalize the school for being religious. The removal of a penalty is not usually viewed as a subsidy.

My own view is that this is unfair discrimination. It's also bad policy. How does it serve anyone's interests to have the kids playing on the school's playground less safe than they would be if the state had provided the same service to the school as it would have any other school?

We all agree on separation of church and state, but playground is a different ballgame, it should not be seen as the part of church's religious activities but as a social obligation towards community and church must ensure that playground will be completely secular, kids following any faith can avail of it, so if that is the case then it is all right to fund it.

We have made these separation of church and state issues much harder than they need to be. The real question shouldn't be whether the government is providing any financial support to anything associated with religious belief. The question should be whether the government is discriminating against or in favor of certain religions. It seems obvious in this case that making the funds available to all institutions that otherwise meet the requirements, regardless of any association or lack thereof to religion, is the least "establishment" thing to do. Buddhist temple, public school, mosque, church, book club — you have a public playground, you get the funds.

Somehow the left has gotten in its head that the government can only avoid establishment by discriminating against all (western) religions. Or else has pretended to find that logical, in the interest of fostering its own anti-religious program.

Somehow the left has gotten in its head that the government can only avoid establishment by discriminating against all (western) religions. Or else has pretended to find that logical, in the interest of fostering its own anti-religious program.

4/21/17, 8:42 AM

This! Far too many people speak with such false authority on this topic. The actual issue is far simpler than they allow it to be mostly because they have their own individual axes to grind.

MikeR said...Seems people are thinking 7-2. I would actually rather bet on 9-0. The pushback from Sotomayor etc. doesn't seem that strong, and the arguments are compelling to anyone but a libertarian federalist - and I don't think there are any of those on the Supreme Court.

Not a chance. When Trinity Lutheran wins this, it's also going to drive a stake through the heart of "you can't give school vouchers to catholic schools". Sotomayor and RBG are not going to sign on to that.

Reading the arguments, i was really impressed with Kagan. "It's a burden on constitutional right, in other words, because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit." I didn't think she had such honesty in her. I wonder if she will continue "growing" on the bench? :-)

To quote from the SCOTUSBlog review "Tellingly, Sotomayor’s statement came immediately after Kagan had signaled a willingness to vote for the church, and may reflect a last-ditch effort to try to avoid a ruling in the church’s favor by convincing her colleagues that the case is moot." Sotomayor isn't going to vote the right way. But on this one she is going to lose

I decided to listen to the oral argument before commenting. Gorsuch sounded measured and smart. Prediction: majority of the court will hold for Trinity, claim to distinguish Locke, and essentially give us a narrow nothing-burger: If the State voluntarily offers a benefit program designed to improve public health or safety, it cannot deny that benefit to an otherwise qualified recipient because of their religious status.

Everyone will be happy with this bowl of oatmeal (and that's not a knock; frankly I can't think of any alternative to oatmeal w/o getting really messy and disturbing Locke). And it arguably leaves open the vouchers-for-Muslim-schools question. But soon the next case will come along and Trinity Lutheran's (predicted) holding would provide little guidance. Take, for instance, the public high school in Frisco, TX that recently designated a prayer room for Muslims (and other faiths) to use during the school day, primarily so the Muslim students aren't forced to leave school for Friday prayers and then return to campus. That certainly goes to student safety. But isn't it also a benefit based solely on religious status? Atheists can't use the prayer room, after all. It's a prayer room. On the other hand, education is a public benefit the Muslims cannot fully avail themselves of, if they must frequently leave campus (many students are gone for up to 1.5 hours) every Friday, to exercise their religion. In fact, too many piled-up absences could cause students to repeat a grade. Does the absentee policy burden their right of free exercise? Does the absence of a prayer room at school burden their right of free exercise because their right to an education is hampered? "Play in the joints"? Oy vey! There's no cartilage.

Out-on-a-limb predictions: Court will retreat somewhat from its undue fascination with the presence or absence of animus. Perhaps Kagan, Ginsberg & Sotomayor will concur in the court's holding on the mertis, but they'll dissent on case or controversy. Breyer will write his own separate concurrence because doggone it, he's the most brilliant legal thinker God has ever bestowed upon all of planet earth, and we best not forget it. Majority opinion will drop a footnote pointing out the church did not raise and the Court does not decide any equal protection claims. This will please Alito.